Brotto Investments Inc. v. Kingsville (Town), 2024 CanLII 81268

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

August 22, 2024

CASE NO(S).:

OLT-23-001148

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Brotto Investments Inc.

Subject:

Proposed Official Plan Amendment No.

Description:

To permit the construction of a new commemorative parkette and a six-storey apartment building

Reference Number:

OPA-2023-1

Property Address:

183 Main Street East

Municipality/UT:

Kingsville/Essex

OLT Case No.:

OLT-23-001148

OLT Lead Case No.:

OLT-23-001148

OLT Case Name:

Brotto Investments Inc. v. Kingsville (Town)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Brotto Investments Inc.

Subject:

By-law No.

Description:

To permit the construction of a new commemorative parkette and a six-storey apartment building

Reference Number:

ZBA-2023-1

Property Address:

183 Main Street East

Municipality/UT:

Kingsville/Essex

OLT Case No.:

OLT-23-001149

OLT Lead Case No.:

OLT-23-001148

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Brotto Investments Inc.

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To permit the construction of a new commemorative parkette and a six-storey apartment building

Reference Number:

ZBA-2023-14

Property Address:

183 Main Street East

Municipality/UT:

Kingsville/Essex

OLT Case No.:

OLT-23-001198

OLT Lead Case No.:

OLT-23-001148

PROCEEDING COMMENCED UNDER subsection 33(9) of the Ontario Heritage Act, R.S.O. 1990, c. O.18. as amended

Applicant and Appellant:

Brotto Investments Inc.

Subject:

Refusal of Heritage Alteration Application

Description:

To relocate, preserve and restore the Esther Jasperson Campbell House

Reference Number:

ZBA-2023-14

Property Address:

183 Main Street East

Municipality/UT:

Kingsville/Essex

OLT Case No.:

OLT-24-000142

OLT Lead Case No.:

OLT-23-001148

APPEARANCES:

Parties

Counsel

Brotto Investments Inc.

Analee Baroudi

The Corporation of the Town of Kingsville

Kelly Nenniger

King Devco Inc.

Paula Lombardi

AMENDING DECISION OF THE TRIBUNAL DELIVERED BY STEVEN COOKE

1In accordance with Rule 24.4 of the Tribunal’s Rules of Practice and Procedure, whereby the Tribunal may at any time and without prior notice to the parties correct a technical or typographical error made in a decision or order, the Decision and Order (“Decision”) issued on July 26, 2024, is hereby amended.

2By adding in Schedule A, attached to this Decision as Schedule A.

3In all other respects, the Tribunal’s Decision remains the same.

“Steven Cooke”

STEVEN COOKE

VICE-CHAIR

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

SCHEDULE A

CASE NO(S).:

OLT-23-001148

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Brotto Investments Inc.

Subject:

Proposed Official Plan Amendment No.

Description:

To permit the construction of a new commemorative parkette and a six-storey apartment building

Reference Number:

OPA-2023-1

Property Address:

183 Main Street East

Municipality/UT:

Kingsville/Essex

OLT Case No.:

OLT-23-001148

OLT Lead Case No.:

OLT-23-001148

OLT Case Name:

Brotto Investments Inc. v. Kingsville (Town)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Brotto Investments Inc.

Subject:

By-law No.

Description:

To permit the construction of a new commemorative parkette and a six-storey apartment building

Reference Number:

ZBA-2023-1

Property Address:

183 Main Street East

Municipality/UT:

Kingsville/Essex

OLT Case No.:

OLT-23-001149

OLT Lead Case No.:

OLT-23-001148

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Brotto Investments Inc.

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To permit the construction of a new commemorative parkette and a six-storey apartment building

Reference Number:

ZBA-2023-14

Property Address:

183 Main Street East

Municipality/UT:

Kingsville/Essex

OLT Case No.:

OLT-23-001198

OLT Lead Case No.:

OLT-23-001148

PROCEEDING COMMENCED UNDER subsection 33(9) of the Ontario Heritage Act, R.S.O. 1990, c. O.18. as amended

Applicant and Appellant:

Brotto Investments Inc.

Subject:

Refusal of Heritage Alteration Application

Description:

To relocate, preserve and restore the Esther Jasperson Campbell House

Reference Number:

ZBA-2023-14

Property Address:

183 Main Street East

Municipality/UT:

Kingsville/Essex

OLT Case No.:

OLT-24-000142

OLT Lead Case No.:

OLT-23-001148

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on December 2, 2024, at 10:00 a.m. at:

GoTo Meeting: https://meet.goto.com/357283957

Access Code: 357-283-957

Audio-only Telephone Line: (Toll Free) 1-888-455-1389 or +1 (647) 497-9371

Access Code: 357-283-957

3. The parties’ initial estimation for the length of the hearing is 10 days, broken down as follows: the first five days will be allocated to the hearing of the area-wide appeals, being OLT files OLT-23-001148, OLT-23-001149, OLT-23-001150 and OLT-23-001151. The following five days will be allocated to the hearing of the site-specific appeals relating to Brotto Investments Inc., being OLT files OLT-23-001198 and OLT-23-001142. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before September 6, 2024 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before September 20, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. The statement of agreed facts, if any, and revised issues list, if any, shall be provided to the Tribunal on or before October 4, 2024.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before October 18, 2024, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before October 18, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before October 28, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before November 8, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before November 8, 2024 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 22, 2024.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 22, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. Documents may be delivered by personal delivery, registered or certified mail, email, courier, electronic file sharing service (required when electronic documents exceed 10 MB in size), or otherwise as the Tribunal may direct. Material delivered by mail shall be deemed to have been received five business days after the date of registration or certification.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

Attachment 1: Parties and Participants

Parties:

1. Brotto Investments Inc.
2. King Devco Inc.
3. The Corporation of the Town of Kingsville

Participants:

1. Joanne Rivard
2. Tamara Stomp

Attachment 2: Issues List

Issues for Hearing #1

December 2-6, 2024 - Appeals of OPA-2023-1 and ZBA-2023-1

(Brotto Investments Inc., OLT-23-001148 and OLT-23-001149)

(King Devco Inc., OLT-23-001150 and OLT-23-001151)

Town of Kingsville

1. Are the adopted OPA and ZBA consistent with the PPS?

2. Do the adopted OPA and ZBA have regard to matters of Provincial Interest, as set out in Section 2 of the Planning Act?

3. Is the adopted ZBA in general conformity with the County of Essex Official Plan?

4. Is it premature for the OLT to consider King Devco’s appeal before any development plan for the subject property has been proposed?

Brotto Investments Inc.

1. Should the height maximum for the entire area within the ‘Main Street Corridor’ designation within ‘Sub-Area Two – Main Street Neighbourhoods’ contained in the OPA and ZBA be increased from 14.5m (4 storeys) to 22m (6 storeys)?

2. Should the height maximum for the lands municipally known as 183 Main Street East located within the ‘Main Street Corridor’ designation within ‘Sub-Area Two – Main Street Neighbourhoods’ contained in the OPA and ZBA be increased from 14.5m (4 storeys) to 22m (6 storeys)?

3. Should the Main Street Neighbourhood (MS2) zone in the ZBA be modified to provide for site specific regulations relating to183 Main Street East as follows:

   1. Parking for permitted uses and structures on 183 Main Street East may also be located in the interior (east) side yard (as per Subsection 5: Parking Regulations, By-law 1-2014);

   2. Front setback (minimum) 5.5 m should be 4.0 for 183 Main Street East.

King Devco Inc.

1. Should the maximum height for the proposed development of the buildings situated on the properties municipally identified as 342 Main Street East, and 20, 24, 28, 32, 34, 40 and 56 Jasperson Street, and fronting along 342 Main Street and located within the ‘Main Street Corridor’ designation located within “Sub-Area Three – Main Street Neighbourhoods” Area 3 contained in the Official Plan Amendment and Zoning By-law Amendment be increased from 14.5 metres (4 storeys) to 22 metres?

2. Should the Main Street Neighbourhood (MS3) zone in the Zoning By-law as it relates to the properties municipally identified as 342 Main Street East, and 20, 24, 28, 32, 34, 40 and 56 Jasperson Street (“Subject Lands”) be modified to provide for site specific as follows:

   1. Parking for permitted uses and structures on the Subject Lands may also be located in the interior side yard (as per Subsection 5: Parking Regulations, By-law 1-2014);

   2. A front setback (minimum) of 4.0 metres instead of the required 5.5 metres;

   3. A 1.5 metre setback for the northerly apartment building fronting along the proposed new road network (Street “A”) (as per section 12.3(c)(v) or (vi) Mainstreet Gateway (MS3))?

   4. Provide for the Main Entry Features of the buildings to face an interior or exterior lot line instead of the required front lot line (as per section 12.3(c)(xi) Mainstreet Gateway (MS3))?

   5. Allow the loading space(s) for the permitted uses and where required to be located on an interior side of a building instead of the requirements set out in section 12.3(c)(xi) Mainstreet Gateway (MS3)?

   6. Reduce the front yard setback for any dwelling(s) fronting on Jasperson Street to be 4.5 metres instead of the required 5.5 metres (as per section 12.3(c)(v) Mainstreet Gateway (MS3)

   7. Permit a front yard setback for a rowhouse dwelling fronting on Street “A” to 5 metres instead of the required 5.5 metres (as per section 12.3(c)(v) Mainstreet Gateway (MS3))?

   8. Permit a rear yard setback for a rowhouse dwelling fronting along Street “A” of 4.5 metres instead of the 6.0 metres (as per section 12.3(c)(vi) Mainstreet Gateway (MS3))?

Issues for Hearing #2

December 9 -13, 2024 –Specific Appeals 183 Main Street

(Brotto Investments Inc. OLT -23-001198 and OLT-24-000142 )

ZBA Appeal

1. Will the construction of a 6-storey (22 m) building on the lands municipally known as 183 Main Street East negatively affect the heritage attributes of the designated heritage building on the Brotto property or other surrounding heritage assets?

2. Does Brotto’s proposed development conform to the primary goals and objects of the Town of Kingsville’s Official Plan, including without limitation paragraphs 1.4 b), 1.4 i) 1.6.1, 2.1.1, 2.3, 2.6, 2.8, 2.9, 2.11, 2.15, 2.16, 3.6.1.1, 3.6.1.2, 4.1.1, 6.1, and 6.4 of the Official Plan?

3. Is Brotto’s proposed development consistent with the PPS, including without limitation paragraphs 1.1.1, 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.1.3.6,1.4.3, 1.6.7, 1.7 and 2.6 thereof?

4. Does the proposed ZBA have regard to matters of Provincial Interest, as set out in Section 2 of the Planning Act 2 d) f), h), j), l), n), p), q), r)?

5. Is the proposed ZBA in general conformity with the County of Essex Official Plan, including without limitation the Official Plan’s policies respecting local issues, and in particular sections 2.2, 2.8.1, 2.8.4 c), 2.8.4 d) 3.2.2, 3.2.4.1, and 3.2.7?

6. Does Brotto’s proposed development support the objective of preserving the heritage attributes and the viewscape of Main Street?

OHA Appeal

1. Is the Township of Kingsville deemed to have consented the Application for Alteration pursuant to section 33(8) of the Ontario Heritage Act?

Note: The inclusion of an issue on the issues list does not mean that all parties agree it is a proper issue.

Note: These are a working draft and may change.

Attachment 3: Order of Evidence

Part 1 (OLT-23-001148, OLT-23-001149, OLT-23-001150 and OLT-23-001151):

1. Brotto Investments Inc.
2. King Devco Inc.
3. Town of Kingsville

Part 2 (OLT-23-001198 and OLT-23-001142)

1. Brotto Investments Inc.
2. Town of Kingsville

Note: this may change as issues are developed and narrowed.

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.